| Easement — Prescription — Right of way — Long user — Tenancy of servient tenement granted after beginning of long user — Failure of servient owner to prevent user — Dominant owner later using alternative track — Whether right of way
Williams & another v Sandy Lane (Chester) Ltd
CA: Chadwick, Wilson LJJ and Lindsay J: 15 December 2006
Once the user of servient tenement by dominant owner had commenced it was not open to the servient owner to say that he had subsequently granted a lease of the servient tenement and had disabled himself from taking steps to prevent the user to defeat the maturity of the prescriptive right; a dominant owner did not lose his acquired prescriptive right if he ceased to use it for a long time without an intention to abandon it.
The Court of Appeal so stated allowing an appeal of the claimants, Sydney Trevor Williams and Rita Mavis Hibbitt, from the decision of Judge Wyn Williams QC who on 11 January 2006, sitting as a Judge of the High Court in the Chester District Registry of the Chancery Division, had dismissed the claim for declarations that they are entitled to rights of way over neighbouring land in the ownership of the defendant company, Sandy Lane (Chester) Ltd, who in 2003 purchased the land from Chester City Council.
CHADWICK LJ said that in a case where user of the servient land by the owner of the dominant land had begun before the grant of the tenancy of the servient tenement, it was necessary to ask whether the freehold owner of the servient land had knowledge (actual or imputed) at or before the date of the grant. If so, then it was likely to be immaterial whether the terms of the tenancy were such that the owner of the servient land could (or could not) take steps to prevent that user. That was because if (with knowledge of the user) the owner of the servient land had granted a tenancy of that land on terms which put it out of his power to prevent that user, he could properly be said to have acquiesced in it. If the owner of the servient land did not have knowledge of the user at the date of the grant, then the position would be the same as it would be if the grant had predated the user. It was necessary to ask whether (notwithstanding the tenancy) the freehold owner could take steps to prevent the user; and, if so, whether (and if so when) the owner had knowledge of the user; that the judge’s conclusion that, even without the 1990 lease, he would have held that the council had not acquiesced in the user of the primary route, did depend on his finding that, at all material times from 1974, part of the primary route was over tenanted land. On a proper analysis, the question whether or not the council had acquiesced in the user of the primary route did not depend on whether or not there was a tenancy of the land immediately to the east of the boathouse. The relevant question, on the facts, was whether the council had knowledge of the use. On the question whether, by ceasing to use the secondary route in those circumstances, the claimants should be taken to have abandoned the prescriptive right which (as the judge found) had, by then, been established by uninterrupted user since the early 1950s, a right of way was not lost by non user alone; even if the non-user extended over many years. What was required was an intention on the part of the dominant owner to abandon the right.
WILSON LJ and LINDSAY J agreed.
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